Technology Forum Meeting - Transcript of Discussions - Page 6  <<   >>

A Texas code section was wielded by a U.S. district judge in Texas, you may know, against Quicken Lawyer, software product introduced by video from Arthur Miller. Quicken Lawyer was found to be engaged in the unauthorized practice of law in Texas three years ago. And the ban lasted for no more than six months. The public would not have it. And, Texas legislature responded by amending the statute to make it clear that it does not -- the practice of law -- does not include the design, creation, publication, distribution, display, or sale including publication, distribution, et cetera, by an Internet web site by materials, books, forms, computer, software if the products clearly and conspicuously state they are not the substitute for advice of attorney.

So Quicken now says, "We are not a Texas lawyer.” There is something similar that's gone on in my universe. Even before this Quicken decision in Texas, the accrediting body, the American Bar Association Council of Legal Education Admissions to the Bar, created some temporary guidelines on distance learning. Requiring an approval, getting an approval process before law schools could break out of the old paradigm sitting with students in classrooms and working with them over a 50-minute period of time. And it's fair to say those temporary guidelines had written all over them in not invisible ink, "Go slow," you know. This is frightening stuff.

Well, I've already told you that, some people have not been inhibited by these new regulations -- certainly Concord has not. One of the things that putting these regulatory boundaries out there does, it allows those who are beyond the boundary complete running room. And so, Concord is building this incredibly fine, highly sophisticated online legal education program without being troubled at all about the ABA rules, because it is not ABA accredited. Meanwhile, all the ABA accredited schools safe behind this barrier are inhibited by it, and there are many things they cannot do because of the way they have responded to the threat.

Well, let me tie to this a story of old architecture and new possibilities, the Legal Information Institute and the journey that Tom Bruce and I with the good help of many friends here have been embarked upon over the last ten years. It's our ten-year anniversary; just a moment in the life of an over a Century-old law school, but eons in Internet time. Ten years ago we established the Legal Information Institute, and before long we were benefiting from a connection with some of you here. I remember our first meeting. I discovered that Jack Lippert had this archive of Court of Appeals decisions, and what was even more wonderful -- he was quite content to have it shared. And so we immediately forged a handshake deal that he would furnish his archive, and we would put it up on Internet for the benefit of all.

By similar makeshift arrangements and response to opportunity, we built the first law site on the Internet and added to its content, added to its content as increasingly law bodies were making their law, the law that they created available in digital format.

And we have to our utter surprise -- I mean, it was a discovery for us to realize how much demand there was for such fully accessible legal information and from such a range of people. We were educated in the importance of law to all sorts and conditions of people in the United States and abroad as we ask now: Who is coming and reading decisions of the Supreme Court of the United States? Who is coming and digging into the U.S. Code? Lawyers, yes. We have, I hope, users in this room. Tom, we saw, makes good use of our collection. But let me tell you about some of the other people who use our site and rely on it: public workers, people in federal government and state government, who may not have good information resources around them, police officers, who find particular slice of law terribly important to their line of work, those who work in financial institutions, people who work in the field of environmental safety, and many others in education.

All of these people have professional roles that are tightly affiliated with a certain chunk of law. And those folks, those folks delight at having direct access to the law and not having to go through a human modem called a lawyer method to reach their law. They may then need some expert advice about what it is they have encountered but they delight at having direct access.

So we've grown to the point that today our array of servers, supervised by Patrice, deals with over a million hits a day, 40,000 user sessions, and these are folks from around the globe, each day. Each day, Cornell Law School furnishes what I'll call a “small amount of legal education” to several times the number of people who have graduated from the school in its entire history. These are people who have no other connection with Cornell Law School than through the Internet.

This site with its primary law collections and its attempt to be a portal site to all of the other law content that can be integrated into a coherent law library, digital law library is of serious professional quality. At the same time, it continues to be a test bed, a basis for ongoing research on how this technology can be better used to deliver law to the profession and to the public.

Six years ago we undertook to explore how digital technology could be used by law schools to teach law students who were not close at hand, and I've already reported that exploration has continued to the present in exciting form.

Now, what has this meant for the Cornell Law School? It has meant a real expansion of the opportunities and the experience of the students who do come here to Ithaca, New York, to study. It has connected the school with law students elsewhere, and it has connected the Cornell Law School with other sectors of education.

Many of the users of the materials that we put together are in high schools and colleges. There are many teachers who visit our site, who wish to highlight the work of the Supreme Court, or a particular period of the nation's history or selected topic.

It's taken a law school, which is in an ivory tower and has reconnected it with the profession in ways that are invigorating and it has created new and diverse global ties for us. Only two weeks ago Tom Bruce and I met with legal academics and lawyers from Indonesia and we talked with them about legal information resources and digital technology as it bore on their work. There was a conference in Japan, in Tokyo, this last summer at which the LII was the model for possibilities of providing public access in
Japan.

But it's fair to say that we're still, this activity that I've described, an uncertain graft on a very traditional institution. As we have traveled this eventful ten years together, with the help from friends, we've seen time and again the cultural and institutional issues and challenges are far more perplexing than the technical ones. The technology raises the question, but it hardly furnishes answers or persuasive answers to those who for many reasons are resistant to change.

All right let me turn to the changing context for the practice of law, and let me just highlight a few things that others and I see.

These are things that are not only happening and were trends that existed before digital technology came along, but digital technology has furnished leverage on these several phenomena:

Greater competition from other service sectors and from service products; increasing client self-reliance and consumerism; stratification of the profession; and decreasing importance of location; clients, people want problems solved, and they don't care particularly whether it's a lawyer that solves them or something else. All right?

Quicken Lawyer -- I'm reading now the Associated Press clip: "Quicken Lawyer can guide people through the process with a series of questions and then generate a document using boilerplate language that lawyers often use. The difference: The software costs $45; a lawyer typically charges $ 500."

Whether or not that captures reality, it certainly captures the marketing thrust of this kind of commodity that takes a professional service and brings it to the desktop or the laptop of a householder or a small business. "LLC Maker also available for download or for CD ROM from Nolo's Law Report. LLC has become the most popular business form for smaller privately held companies. Whether you're already in business or starting a new one, LLC Maker can help you take advantage of these benefits without paying hundreds or thousands of dollars in fees to lawyers and accountants. LLC Maker puts all the legal and tax information you need right at your fingertips. Use it today: Your price $ 53.97."

This is part of the world in which you work. Those things that were previously sort of undifferentiated professional service are being put into commodity form whether we're talking about commodities for businesses -- big businesses, small businesses -- or we're talking about individuals and families.

Client self-reliance and consumerism: I mean, two ways that it plays here. Both of these came in unsolicited from users of our publicly accessibly information.

A middle manager in a technology company: "Thanks for putting the copyright act on the net. Now I don't need to go to our lawyer and have it read to me."

The other spin: "I feel more confidence retaining an attorney and preparing information for my attorney. I also feel comfortable knowing what conduct and services I should expect from the attorney I retain."

The informed or misinformed client: The analogy to clients coming in having already spent time trying to understand the law is something that the medical profession has been encountering, I think, in greater detail than the lawyers have. But it's coming very much into the world in which you and I work.

Can I speak of stratification without offense? I mean, this group is marvelous in that it brings people from all sorts of practice settings together. But it's widely observed that the legal profession and law schools, though they may use the rhetoric that speaks of there being one, are actually several, and that that degree of stratification or separation is growing.

This was clearly happening before digital technology came along, and it seems to be another area in which leverage is occurring.

Let me just refer -- and I can furnish references for those who want to go deeper on this -- refer to the work of Jack Heinz and Ed Laumann's Chicago Lawyer Study published in the early eighties and now being updated with the help of a younger colleague, Bob Nelson. The updated findings in effect track what has happened in the profession between 1975 and 1995 reveal some of the following: Huge growth in the number of lawyers. Strong shift towards practice within organizations when they were talking about solos moving into smaller firms, smaller firms going larger, firms growing huge. There has also been a marked rise in the fraction of legal effort and remuneration coming from representation of businesses rather than personal clients. The split in the urban setting in Chicago in 1995 was 64 percent business versus 29 percent personal client work.

What fields are going? Probates is in decline. Family law is holding steady. Business litigation and personal injury defense are growing. That relates to the business representation and dramatically increasing income. In 1975, the study in the Chicago metro area showed the lawyers in the lowest paying category, when compared to those in the highest paying category, had a ratio of one to four. By 1995, it was one to seven. The highest paying category, which was private law practice, was being compensated seven times more generously than those in the lowest paying category, which was government work.

Decreasing importance of location: I hear lawyers say or law firms say in their NPR sponsorship announcement that they are located on the Internet, and we all know that law firms are located on the Internet. Today, I believe the largest immigration practice in the United States is being conducted out of the state that has no international borders.

MR. SIENKO: Tennessee?

PROF. MARTIN: And here it is, it's on the Internet.

MR. SIENKO: Tennessee, yeah.

PROF. MARTIN:
It is difficult to downsize assets that have fixed costs when so many customers still prefer the current business model. It is difficult to walk away from core competencies that were built over decades, the object of personal and collective pride and identity @ [However, an even] greater vulnerability than legacy assets is a legacy mindset.

Evans & Wurster, Blown to Bits (1999)

The challenge to us all is to find a way to change without being seriously fatally encumbered by legacy constituencies and mind-sets, finding a way to experiment in a rapidly changing environment.

This is the problem of dragging; right? It's here put in a book about higher education entitled "Blown to Bits" for it conceives of that being the fate of institutions like Cornell University.

The difficulty of downsizing assets that have fixed cost when is so many customers still prefer the current business model. We could be talking about lawyers. We could be talking about New York State Bar Association here. Difficulty to walk away from core competencies that were built over decades the objective person and collective pride and identity. Even greater vulnerability than the legacy assets is a legacy mind-set, thinking about new possibilities.

Now, the LII represents an institutional effort to deal with the problem. And, let me just draw your attention to some of the elements of the LII recipe. It derives from -- it's based upon information and human resources of the parent institution. But we never would have gotten where we got if we had remained tightly within the culture and the institutional space of the Cornell Law School, so very important to where we've gotten is that while we draw strength from the parent, we are not of the parent.

We created an open space rather than a closed space, and invited new audiences and learned from them and drawn strength from them, drawn ideas from them. It would have been a huge mistake, we never would be what we have become, if we said this is a space for alumni of the Cornell Law School or even a space just for lawyers or for law students. It's an open space in which an audience assembles. We learn from audience both in terms of what the audience needs but also we draw information from the audience and set up framework for exchange.

Probably to a degree that might be characterized as paranoid, we've been skeptical and resistant about commercial partnerships, potential partners who would view what we were doing as a way to have access to a market. We kept implementation very close to our ideas, and we continue d to experiment.
Social Security Law: Now the final window I thought I would invite you to peer through with me and I'll do this very quickly, is the field of social security law. I created CD ROM that two successive commercial law publishers sold for an unconscionable amount of money. And lawyers paid it. They paid for information that is now freely available on the Internet. One of the things that's happened is that information resources from the public body itself responsible for the program have opened up. Lexis spent a lot of money keying in the social security rulings that the Social Security Administration now has at its web site. I spent a lot of time trying to put a matrix over those rulings to be clear which ones had been rescinded or rendered obsolete in some other official fashion at the agency. You can now get that at their web site.
We put a layer of value on top of the publicly available information, and, again, this is publicly accessible through our web site. So one thing that has happened in the field is what was a very expensive information product is now just available to any and all.

There are service commodities. The most valuable one comes out of the agency itself. You want to estimate your benefits? You want to do projections of your benefits? You can get it a calculation, a programmatic estimate done for you real-time at the Social Security Administration's web site. Nolo is also right there with a guide.

The more interesting thing and the example with which I will conclude probably bears some resemblance to the Elder Law mailing list that David Goldfarb referred to. There is a professional organization, The National Organization of Social Security Claims Representatives, and it's a strong professional organization. It's got newsletters. It's got educational meetings. But it's got legacy mind-set and it's got legacy assets. So, leaping out of -- but nonetheless freed of -- those burdens, is a list now operated by members. The list does some of the following things: It's got minimal structure, but it's got a strong sense community, a strong sense of community that was revealed two months ago when three participants on the list were appointed to become administrative law judges. And after there was some discussion of whether they could stay in the list, the community wished them well and booted them out.

In short, this is not an open list. This is a list for a community of folks who are representing clients before administrative law judges. One of the things they do is they exchange information about judges. So once you have become a judge, you are no longer privy kind of exchange.

I have been an honorary member of this list for the last year and a half. Here is what I've observed. Updates come in from everybody -- not just a single official updaters, but also everyone who has something to contribute. Let the sixth or ninth circuit render an important social security case, it goes out to the list. It goes out with a link to the court web site where that decision is available. Let somebody discover that there is a new treasury policy that limits the cashing of SSI checks, that discovery and queries about whether others have encountered it as well goes out. Lots of questions from less experienced people that are responded to by more experienced colleagues. Questions about law, questions about agency procedures.

Discussions about practice economics, and questions relating to how one responds to particular challenges presented by clients. What do you do if you've got some medical reports and the medical reports indicate trace elements of cocaine in a particular medical test? Those medical records have not yet been furnished to the agency, and you know that if it is determined that substance abuse is a significant part of the client's problems, the client is ineligible for disability benefits.

Ethical issues are discussed. Lots of discussion of individual administrative law judges and their strengths and weaknesses and their soft sides. How do you approach this particular ALJ who is coming on in new regions?

Referrals, views on information products. What do you think of this thing? West Group is now trying to foist off on us? And, what follows is uninhibited discussion of products.

And, persuasion, one could call it lobbying: These folks care a lot about the cap on fees. That is within the power of the Social Security Administration to raise, and so all kinds of persuasion were organizing as there was a new commissioner of social security in order to see to it that the cap was lifted from $4,000 to a $5,000. or more.

All right. So those are some of the things that go on in fluid informal networks that has a relationship with, and a rose out of a more formal membership organization. There are no dues with this list, but money has changed hands. The person running the server was having trouble with viruses. So he researched, found out how much it would cost to get virus protection software installed to protect the list, and the hat was passed. More than enough was raised among those who were benefiting from the list to cover the cost, the minimal costs of sustaining this activity.

In many ways I see a strong connection between my experience over the last ten years with the Legal Information Institute and the challenges you are facing, is quite similar. I'll close with the words of my university's president, Hunter Rawlings, who said on an important day, "We hope to shape our own future rather than allow it to be shaped for us by outside forces and by chance." The occasion was the creation of an unprecedented vehicle for delivering education. The establishment of E-Cornell, a wholly owned, for-profit subsidiary of Cornell University that will operate totally in the digital world.

Now, it's far too soon to know whether or not that was a successful move, but I am with the president totally that not to attempt, not to try to shape the future of the university as it confronts these challenges would have been a huge mistake.

(Applause.)